PROPERTY
PINDELL
2013
Five Theories of Property:
1. Protect First Possession
a. “first come, first serve”
b. First-in-time concept
i. More prevalent when resources are plentiful and people to claim are few.
ii. Less popular today but still relevant
1. Parking spots in a public street, seat in a crowded theater, etc.
c. Scholars believe first possession approach doesn’t adequately justify property as a general matter.
i. Describes HOW property rights arose
ii. Not WHY it makes sense for society to recognize those rights.
2. Encourage Labor
a. John Locke – Entitled to property produced through one’s own labor.
i. Natural resources are un-owned until mixed with one’s labor (which one owns).
b. This theory can be applied to copyright and patent law
3. Maximize Social Happiness
a. Jeremy Bentham – Traditional Utilitarian theory
i. We recognize property in order to maximize the overall happiness of society. Means to an end.
ii. Distribute and define property rights in a manner that best promotes the welfare of all citizens
1. Not simply those who own property.
b. Law and Economics Variant of Utilitarianism
i. Property seen as efficient method of allocating valuable resources to maximize one fact of societal happiness
1. Wealth (in dollars)
ii. For economy to reach it’s full potential, system must have three factors (per howard gensler)
1. Universality
a. All valuable scarce resources must be owned by someone.
2. Exclusivity
a. If an owner is unable to exclude others from the use and enjoyment of the property, then the owner has no incentive to improve the property.
3. Transferability
a. No transferability = no trade gains able to be made.
iii. Property exists to ensure that owners use resources in an efficient manner (to maximize economic value)
4. Ensures Democracy
a. Civic republican theory
i. Property facilitates democracy
ii. Ensures owner the economic security necessary to make political decisions that serve the common good.
b. Allows for economic and personal independence from the government
i. Not relying on the good will of government officials
5. Facilitate Personal Development
a. Georg Hegel – Personhood Theory
i. Property is necessary for an individual’s personal development.
b. Emotional connection to certain tangible things
i. Virtually become a part of one’s self.
ii. Can gauge the strength of significance based on pain of loss
1. If loss causes paint hat cannot be relieved by object’s replacement.
iii. Professor Radin – All things being equal, a right to personhood property should be given priority over a conflicting claim by the owner of non-personhood property.
6. Bundle of Sticks
a. Right to Transfer
b. Right to Exclude
c. Right to Use
d. Right to Destroy
Pierson v Post
Rule:
● Brought within pursuer’s sure and certain control
● Deprived of natural liberty.
● Manifested unequivocal intention (objective intent) to appropriate
Facts: Pierson shot and killed fox that Post was hunting.
Procedural Posture of the Case: Lower court found for Post (π)
Issue of the Case: “What actions constitute occupancy?”
Holding: Previous courts findings were erroneous and should be reversed.
Reasoning (Majority): One must manifest an unequivocal intent to appropriate the animal to one’s individual use, deprive the animal of its natural liberty, and bring the animal within certain control.
Reasoning (Dissenting): Ownership goes to the person who first comes near the animal with a reasonable prospect of taking it captive.
White v Samsung; Johnson v McIntosh 15-35
Rule:
● §3344 is more narrow than common law.
● case law says that “the right of publicity is not limited to the appropriation of name or likeness”
Facts: Samsung ran an advertisement showing a robot dressed in clothing, jewelry, and a blonde wig that look similar to Vanna White on the stage of Wheel of Fortune.
Procedure: summary judgment issued for defendant at trial court.
Issue: Were White’s intellectual property rights violated?
Holding: court affirms summary judgment of § 3344, reverses the judgment of the common law of publicity. to section II, Identity qualifies.
Rationale (Majority): The defendant’s actions directly implicated the commercial interests which the right of publicity is designed to protect.
● It’s not important HOW the defendant appropriated the plaintiff’s identity, but WHETHER the defendant has done so.
● The law protects the celebrity’s sole right to exploit this value whether the celebrity has achieved her fame out of rare ability, dumb luck, or a combination thereof.
Rationale (Dissenting): Overprotecting intellectual property Stifles creativity and thus economic and social gains.
Common Law of Publicity (right of publicity)
● the common law right of publicity cause of action may be pleaded by alleging
○ 1) The defendant’s use of the plaintiff’s identity, 2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise, 3) lack of consent; and 4) resulting injury
Right to transfer;
Moore vs. University of California
Rule:
● Moore did not have ownership / right of possession of excised cells.
● The subject matters of the Regents’ patent cannot be Moore’s Property
Facts: UCLA developed cell line from Moore’s cells taken during surgery that made 3 Billion dollars.
Procedure: Superior court sustained defendant’s demurrers and Court of Appeal reversed.
Issue: Does Moore have a sufficient ownership interest in his excised cells under existing conversion law?
Applicable Law
● To establish Conversion
○ Plaintiff must establish an actual interference with his ownership or right of possession… Where plaintiff neither has title to the property alleged to have been converted, nor possession thereof, he cannot maintain an action for conversion”
Holding: the Court holds that the complaint states a cause of
oning (Majority): Gurwits possession was actual, exclusive, open and notorious, adverse and hostile, and continuous.
Tioga Coal Co. v. Supermarkets General Corp.
Rule: Hostility inherent if all other conditions are met.
Facts: Tioga controlled ingress and egress from Agate street and used the whole street for thirty years.
Issue: Should Tioga have had to prove its subjective hostility by establishing that it directed hostility toward the true owner (Supermarkets), not the mistaken owner of the land (the City)?
Holding: We hold that if the true owner had not ejected the interloper within the time allotted for an action in ejectment, and all other elements of adverse possession have been established, hostility will be implied, regardless of the subjective state of mind of the trespasser.
Reasoning (Majority):
● Application of objective tests as to whether the land was adversely possessed promotes use of the land in question against abandonment.
● A person who has put down his roots on land develops an attachment to the land which is deserving of protection.
Tacking
Howard v. Kunto
Rule: Summer use of home can constitute usage. Tacking allowed if successive occupants are in privity.
Facts: Land survey screwed up who owned what land. Kuntos lived on land that Howard got in a land trade with Moyers to correct problem. Kuntos sought quiet title.
Issue:
● Is a claim of adverse possession defeated because the physical use of the premises is restricted to summer occupancy?
● May a person who receives record title to tract A under the mistaken belief that he has title to tract B (immediately contiguous to tract A) and who subsequently occupies tract B, for the purpose of establishing title to tract B by adverse possession, use the periods of possession of tract B by his immediate predecessors who also had record title to tract A?
Applicable Law: The state follows the rule that a purchaser may tack the adverse use of its predecessor in interest to that of his own where the land was intended to be included in the deed between them, but was mistakenly omitted from the description.
Holding: Occupancy of tract B during the summer months for more than the 10-year period by defendant and his predecessors, together with the continued existence of the improvements on the land and beach area, constituted “uninterrupted” possession within this rule.
Reasoning (Majority): There is also a strong public policy favoring early certainty as to the location of land ownership which enters into a proper interpretation of privity.
Disabilities
● The period for adverse possession will be extended due to a property owner’s disability.
● Death ends all disabilities
● Disabilities cannot be tacked.
● Disability does not shorten the standard period for adverse possession.
● If disability occurs after AD, then NO extra time
